June 24, 2010

Elena Kagan and the Religion Clauses

Many assume that if confirmed as a Supreme Court justice, Elena Kagan's votes on the Court will come out pretty much the same way as those of her predecessor John Paul Stevens. But two separate reports issued Wednesday suggest that Kagan may part company with Stevens in cases involving religious liberty. The reports highlight her views on the Establishment Clause and the Free Exercise Clause of the First Amendment, suggesting she may chart a different course.

In one report, scholar Melissa Rogers suggests Kagan could "move the Court closer to reinvigorating the Free Exercise Clause and thus closer to providing additional protection for the peaceful practice of all faiths." Her study, issued by the Brookings Institution, notes that Justice John Paul Stevens, whom Kagan is set to replace, was an ally of Justice Antonin Scalia when it came to free exercise matters; both approved of generally applicable laws that burdened religious practices, as long as they weren't aimed at undermining those practices. Stevens joined Scalia's majority opinion in Employment Division v. Smith, the controversial 1990 decision that gave a "weak reading" of the Free Exercise Clause, as Rogers put it.

Based on some of Kagan's writings revealed in recent documents released by the Clinton presidential library, Rogers suggests that Kagan may have markedly different views on the issue, and her nomination "could mark the first time a critic of the 1990 Smith decision ... replaces a supporter of that decision."

Rogers points to a 1996 memo from Kagan in the White House counsel's office concerning a California court ruling that upheld the application of a law barring housing discrimination against a religious landlord who refused to rent to an unmarried couple. Kagan called the California decision "quite outrageous" and urged an appeal of the ruling, lest it undermine the Religious Freedom Restoration Act, which was aimed at countering the 1990 Smith decision. Rogers acknowledges that Kagan might have been just advancing President Clinton's agenda on the issue, not her own view of the matter. But she said the memo "points toward a deep understanding of some of the fundamentals of religious freedom."

The other report issued Wednesday treats Kagan's views on the issue with alarm. Her memo on the California case "raises many questions," according to Americans United for Separation of Church and State. Kagan also described herself as "the biggest fan" in the White House of RFRA and its successor the Religious Liberties Protection Act. For Americans United executive director Rev. Barry Lynn, these views raise concerns that she may slight civil rights protections in the name of protecting religious practices. "For Americans United, maintaining civil rights protections in federally funded programs and in the private sector is absolutely critical," Lynn wrote in a letter to the Senate Judiciary Committee, urging senators to ask Kagan about religious liberty issues.

Americans United also questions Kagan's views on the Establishment Clause. Various Clinton-era memos suggest she did not support a legislative amendment that would have prevented "pervasively sectarian" organizations from receiving government funding for social services. Senators, Lynn said, "should determine whether Kagan is committed to the Establishment Clause principle that the government may not fund 'pervasively sectarian' organizations and that, as a Supreme Court justice, Kagan would not bargain away those core religious freedoms."